Turner v. Canada Border Services Agency

Turner v. Canada Border Services Agency
Collection
Canadian Human Rights Tribunal
Date
2014-03-07
Neutral citation
2014 CHRT 10
File number(s)
T1248/6007
Decision-maker(s)
Craig, Wallace G.
Decision type
Decision
Decision status
Final
Grounds
Age
Colour
National or Ethnic Origin
Race
Decision Content
Between:
Levan Turner
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Canada Border Services Agency
Respondent
Decision
File No.: T1248/6007
Member: Wallace G. Craig
Date: March 7, 2014
Citation: 2014 CHRT 10
Table of Contents
I............. Introduction. 1
II........... Judgment of the Federal Court of Appeal 2
III......... Legal Framework. 7
A. Prima facie case. 7
B. The “Subtle Scent” of Discrimination. 9
C. Perceived Disability. 10
D. Intersectionality. 11
E. Racism and Stereotyping in Canada. 12
IV......... The Evidence. 13
A. Complainant’s Opening Statement 13
B. Respondent Counsel’s Reply. 15
C. Witness: Christopher James Hughes. 17
Klassen e-mail 20
Vancouver Competition 1002 – Eligibility Restriction. 20
Grievance complaint to the Public Service Commission. 26
Historical context of eligibility lists and prequalified pools. 30
Cross-examination of Mr. Hughes. 31
Re-examination of Mr. Hughes. 37
Mr. Hughes’ troubled relationship with Revenue Canada. 39
D. Witness: Levan Turner 41
Work experience as Customs Inspector 42
First season as a Customs Inspector, May 1998 to October 1998. 43
Second season as a Customs Inspector, December 29, 1998 to October 1999. 45
Third season as a Customs Inspector, April 2001 to October 2002. 47
The Job Competitions. 50
Cross-Examination of Levan Turner 58
Prima facie case: – Evidentiary threshold. 65
E. Witness: Terry Berent Klassen. 65
F. Witness: Trevor Baird. 69
Relevance of Mr. Turner’s positive performance reviews. 80
Klassen e-mail 82
Mr. Baird on veracity of Mr. Turner 84
G. Witness: Nina Patel 85
Cross-Examination of Ms. Patel 88
Conclusions arising from Ms. Patel’s testimony. 91
H. Witness: Shalina Sharma. 92
Origin of the eligibility restriction in the Vancouver Competition 1002. 92
Staffing competitions operate within their own rules. 94
Aspects of competency which ought to be considered by an interview panel 95
Analysis of the evidence of Ms. Sharma. 100
I. Witness: Ronald Paul Tarnawski 100
Cross-Examination of Mr. Tarnawski 105
Analysis of the last question put to Mr. Tarnawski in cross-examination. 110
V........... Analysis. 110
A. Preface to Reasons for Determination. 110
Mr. Turner’s opinion on why he was denied further employment 111
Determinations: Vancouver Competition 1002/ Victoria 7003. 111
Credibility of witnesses. 112
B. Analysis of Victoria Competition 7003. 116
C. Analysis of Vancouver Competition 1002. 118
D. Application of Relevant Law.. 121
The Shakes decision. 121
E. Response of the employer to prima facie case. 124
Vancouver Competition 1002. 124
Victoria Competition 7003. 125
VI......... Determinations. 126
VII....... Decision. 127
I. Introduction [1] In a complaint dated February 8, 2005, filed under section 7 of the Canadian Human Rights Act (CHRA), Levan Turner alleged that the Respondent, the Canada Border Services Agency (CBSA), then known as the Canada Customs and Revenue Agency (CCRA), engaged in a discriminatory practice on the grounds of age, race, national or ethnic origin, and colour, in a matter related to employment. In his Statement of Particulars, the Complainant raised the further issue of perceived disability: obesity.
[2] Mr. Turner’s claim arises out of the manner in which he was excluded from two staffing processes for employment as Customs Inspector with the CCRA and its Canada Customs and Immigration successor, the CBSA. After being interviewed Mr. Turner was declared not qualified in a Victoria job opportunity posted October 11, 2003 (Victoria Competition 7003), and was declared to be ineligible following a first interview in the other process, a Vancouver job opportunity posted June 9, 2003 (Vancouver Competition 1002).
[3] The Canadian Human Rights Tribunal (the Tribunal) conducted an inquiry in Victoria B.C. on November 17 - 21, 2008, January 19 - 22, 2009, and concluded the inquiry by teleconference on March 17, 2009.
[4] On June 10, 2010, the Tribunal dismissed Mr. Turner’s complaint:
[183] I have concluded that CBSA has provided a reasonable explanation as to why Mr. Turner did not qualify for a CI position in either the Vancouver 1002 competition or the Victoria 7003 competition. I have also concluded that there is nothing in the evidence or in CBSA’s explanation that can be considered pretextual.
[184] For these reasons, I have concluded that Mr. Turner has not substantiated his complaint. Accordingly, it is dismissed.
[5] The Tribunal’s decision made no mention of perceived disability, which had been raised in evidence and argument by the Complainant along with the grounds of age, race, and national and ethnic origin.
II. Judgment of the Federal Court of Appeal [6] In a unanimous judgment delivered by Mr. Justice Mainville on May 30, 2012, the Federal Court of Appeal set aside the judicial review judgment of the Federal Court and referred Mr. Turner’s complaint back to the Tribunal for re-determination by a different member.
[7] Paragraphs 3 to 11 of the decision of the Federal Court of Appeal summarize the background circumstances which are relevant to a re-determination by the Tribunal.
[3] The appellant describes himself as a large black male. He is currently employed with Service Canada. The appellant’s complaint arises out of two competitions for full-time regular customs inspector positions with the Canada Customs and Revenue Agency (“CCRA”), to which the Canada Border Services Agency was a successor. At the time he applied for each competition, he was working as a seasonal customs inspector in Victoria, British Columbia, and had done so from 1998 to 2003. As a seasonal customs inspector, the appellant had always received positive written performance reviews from his supervisors.
[4] The first competition, posted by the CCRA on June 9, 2003, was for a customs inspector position in Vancouver. The second competition, posted on October 11, 2003, was for a similar position in Victoria (“Victoria 7003”).
[5] In addition to the usual criteria to be satisfied, an eligibility restriction was added for the Vancouver competition, which provided that “[a]pplicants who have been interviewed for this position since January 1, 2002 will not be eligible for this process” (Appeal Book (“AB”) at page 822). Because the appellant had not been interviewed for a customs inspector position in Vancouver, he considered himself eligible for the competition and thus applied. He passed the Customs Inspector Test required of all candidates. The next phase in the competition process involved two interviews. The appellant was invited to the first interview, which was held on April 26, 2004 and which he passed. However, one of the members of the interview panel recognized the appellant as having previously been unsuccessfully interviewed for customs inspector positions in Victoria. Although the appellant was successful in the first interview for the Vancouver position, he was subsequently disqualified from the competition because he was deemed to fall within the ambit of the above-described eligibility restriction.
[6] The appellant was the only candidate disqualified from the Vancouver competition on the basis of the eligibility restriction. At least one other candidate had also unsuccessfully applied for customs inspector positions in Victoria. In one case, the candidate had failed the paper review of her portfolio of competencies for a position in Victoria and had thus not proceeded to an interview for the Victoria position. This candidate was not disqualified from the Vancouver competition. Another candidate bearing the same name as someone who had failed an interview for a Victoria competition was also not disqualified from the Vancouver competition; however, there was some confusion as to his identity.
[7] In the light of this, the appellant questioned the reasons for his disqualification, and requested further information from the CCRA. He received no reply to his inquiry.
[8] The appellant qualified for the Victoria 7003 competition, but he failed to pass the interview for this competition. That interview was held on December 13, 2003. The selection board for the competition failed him on two competencies: (a) effective interactive communication and (b) teamwork and cooperation.
[9] Prior to these interviews, his supervisor had sent a long email to a number of members of the CCRA management group setting out the perceived failings of the appellant. The email was dated October 4, 2003, and was thus sent out approximately two months before the appellant’s interview for the Victoria 7003 competition and a little less than seven months prior to his interview for the Vancouver competition. The email noted that the appellant was perceived as someone who “sometimes shies away from the harder tasks, or knows the right procedure (a difficult task) to take but ask to supt [sic] hoping the supt [sic] will use their discretion and go the easier way. It was also pointed out how other inspectors had complained that he had left cash outs for others to do instead of doing them on his shift.” The email also noted that “there is a portion of [the appellant] that does look for the easy way out …” AB at pp. 321-22.
[10] The appellant strongly denied the allegations made in that email, which contradicted the positive formal written evaluations that all his supervisors had given him, including the supervisor who had drafted the email. The appellant was the only seasonal employee who was the subject of such an email.
[11] In light of his years of service as a seasonal customs inspector in Victoria, his positive employment evaluations, and his past experience in law enforcement-related activities, the appellant formed the belief that his disqualification from the Vancouver competition and his failure to pass the interview for the Victoria 7003 competition were the result of his being unfairly stereotyped within the CCRA as a “big lazy black man.”
[8] While the appellant raised a number of arguments before the Court of Appeal, the Court found that it need only consider the “principle ground of appeal” – the argument that the Tribunal failed to consider perceived disability as a ground of discrimination. The Court found this argument to be well-founded (para. 2).
[9] The Court observed that the Tribunal made no mention of “perceived disability on the basis of weight” (para. 21), despite the fact that this ground was raised in Mr. Turner’s complaint form and statement of particulars, was discussed many times during the course of the proceedings, and was “argued as an important point in the appellant’s written submissions to the Tribunal” (para. 46). The Court found that “the Tribunal member indicated that he understood that perceived disability was being raised by the appellant” (para. 26). In light of this, the Court found the silence of the Tribunal on this issue to be troubling:
[33] In this context, the complete silence of the Tribunal on the issue of perceived disability is troubling. Did the Tribunal refuse to consider this ground of discrimination on the basis that it lacked jurisdiction to do so? Or was the Tribunal of the view that perceived disability involving weight does not constitute a ground of discrimination contemplated by the Canadian Human Rights Act? Or did the Tribunal find that the appellant had failed to establish a prima facie case of discrimination on this ground? And if so, why did the Tribunal disregard the arguments of the appellant concerning the importance of intersecting or compound grounds of discrimination, and the principles set out in Radek? (cited infra) Or did the Tribunal simply forget to address these issues? In the absence of any discussion in the Tribunal’s reasons, we simply do not know the answers to these questions.
[10] Considering these various possibilities, the Court observed that a finding by the Tribunal that it lacked jurisdiction to consider the ground of perceived disability in this case would raise “serious questions... as to the propriety of such a finding in light of the Tribunal’s own past jurisprudence”, and would also raise fairness concerns “in light of the explicit request of the appellant to be allowed an opportunity to submit an amendment in the event of such a finding” (para. 34). Further, in the absence of a finding on whether the ground of perceived disability was properly before the Tribunal, “the [Tribunal’s] conclusion that a non-discriminatory explanation existed may be questioned, since this conclusion may have been reached in circumstances where not all of the alleged grounds of discrimination were properly addressed” (para. 47).
[11] If, in the alternative, the Tribunal made an unstated finding that the appellant failed to establish a prima facie case of discrimination on the basis of perceived disability, the Court found that “it failed to state the reasons for reaching such a conclusion” (para. 36). The Tribunal’s failure to deal adequately with this ground was the basis upon which the Court overturned the Tribunal’s decision:
[50] In my view, the appellant’s complaint that he was also discriminated against on the grounds of disability was before the Tribunal and was sufficiently significant that the Tribunal was under a duty to deal with it or to explain why it did not. In the absence of any reasons in the Tribunal’s decision or of a clear answer in the record, it is not the role of a reviewing court to speculate as to why the Tribunal did not deal with the issue of perceived disability or what conclusion the Tribunal would have reached if it had addressed the issue. Insofar as the reviewing court has reasonable concerns as to the potential outcome of the proceeding had the issue been addressed by the Tribunal, the judicial review application should be allowed.
[12] The Court found that it was not in a position to review the legal question of whether perceived disability on the basis of weight is a prohibited ground of discrimination contemplated by the CHRA, as this would be a speculative exercise in the absence of a finding and reasons by the Tribunal on this point (para. 35).
[13] In addition to the Tribunal’s treatment of the ground of perceived disability, the Court of Appeal devoted considerable attention to the Complainant’s argument regarding intersecting or compound grounds of discrimination, which it found had been disregarded by the Tribunal (para. 33, quoted above). The Court observed:
[48] In his written submissions to the Tribunal, the appellant also referred to the concept of intersecting grounds of discrimination, which, at a basic level, holds that when multiple grounds of discrimination are present, their combined effect may be more than the sum of their individual effects. The concept of intersecting grounds also holds that analytically separating these multiple grounds minimizes what is, in fact, compound discrimination. When analyzed separately, each ground may not justify individually a finding of discrimination, but when the grounds are considered together, another picture may emerge.
[14] The Court referred to a multi-dimensional approach to defining disability, outlined by the Supreme Court in Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Québec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27 (“Boisbriand”):
… Instead a multi-dimensional approach to defining disability that includes a socio-political dimension and which places emphasis on human dignity, respect and the right to equality rather than on simple biomedical conditions. As noted by L’Heureux-Dubé J. at para. 77 of the reasons in that case, “this approach recognizes that the attitudes of society and its members often contribute to the idea or perception of a ‘handicap’. In fact, a person may have no limitation in everyday activities other than those created by prejudice and stereotypes.”
(para. 30)
[15] The Court noted that s. 3.1 of the CHRA “specifically provides that a discriminatory practice includes a practice based on the effect of a combination of prohibited grounds”, and observed that the analysis of the primary ground of a complaint must not ignore the other grounds and “the possibility that compound discrimination may have occurred as a result of the intersection of these grounds” (para. 49). It quoted with approval at para. 31 the analysis of the British Columbia Human Rights Tribunal in Radek v. Henderson Development (Canada) Ltd. and Securiguard Services Ltd. (No. 3), 2005 BCHRT 302 (“Radek”) at paras. 464 – 465:
[464] The interrelationship between a number of intersecting grounds of discrimination is sometimes described as "intersectionality". The concept of intersectionality has been discussed in a number of recent decisions, including: Morrison v. Motsewetsho (2003), 48 C.H.R.R. D/51 (Ont. H.R.T.), Comeau v. Cote, [2003] BCHRT 32, and Baylis-Flannery v. DeWilde (No. 2) (2003), 48 C.H.R.R. D/197 (Ont. H.R.T.). As described in Baylis-Flannery, "[a]n intersectional analysis of discrimination is a fact-driven exercise that assesses the disparate relevancy and impact of the possibility of compound discrimination": at para. 143. Speaking there in a case of sexual harassment against [sic] a Black woman, the Tribunal stated that an awareness of the effect of compound discrimination is necessary in order to avoid:
reliance on a single axis analysis where multiple grounds of discrimination are found, [which] tends to minimize or even obliterate the impact of racial discrimination on women of colour who have been discriminated against on other grounds, rather than recognize the possibility of the compound discrimination that may have occurred. (at para. 144)
[465] The same could be said in the present case with respect to race, colour, ancestry and disability. While the primary focus of Ms. Radek’s individual complaint is her race, colour and ancestry, the analysis of those grounds must not ignore her disability, and the possibility of the compound discrimination which may have occurred.
[16] The Court also found other aspects of the Tribunal’s decision to be problematic, including: the Tribunal’s choice not to make a finding on whether a prima facie case of discrimination had been established in relation to the grounds of race or of national and ethnic origin, but instead to assume such a case was established and examine whether the employer had provided a reasonable explanation (paras. 14-15); and, the failure to make findings of fact regarding “the truthfulness of the alleged failings of the appellant set out in his supervisor’s email”, and “how and to what extent that email may have influenced the selection processes” (para. 15).
[17] This appellate-directed Tribunal decision by Member Wallace Gilby Craig is based on consideration of all viva voce testimony, pertinent exhibits, opening statements and argument of Counsel (written and oral), and, particularly, oral argument of Counsel in Victoria on
November 20 and 21, 2013.
III. Legal Framework A. Prima facie case [18] The initial evidentiary burden in a case of discrimination under the CHRA requires a complainant to adduce credible evidence which establishes facts, directly or by inference, that he/she was the victim of a discriminatory practice as defined in the CHRA. The prima-facie-standard was established by the Supreme Court in OHRC and O’Malley v Simpsons-Sears, [1985] 2 SCR 536, (O’Malley):
[28] … I agree then with the Board of Inquiry that each case will come down to a question of proof, and therefore there must be a clearly-recognized and clearly-assigned burden of proof in these cases as in all civil proceedings. To whom should it be assigned? Following the well-settled rule in civil cases, the plaintiff bears the burden. He who alleges must prove. Therefore, under the Etobicoke rule as to burden of proof, the showing of a prima facie case of discrimination, I see no reason why it should not apply in cases of adverse discrimination. The complainant in proceedings before human rights tribunals must show a prima facie case of discrimination. A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent‑employer. …
[19] In Morris v. Canada (Canadian Armed Forces), [2005] F.C.J. No. 731 [F.C.A] (Morris), at paragraphs 27and 28, the Court concluded that:
[27] … [T]he legal definition of a prima facie case does not require the Commission to adduce any particular type of evidence to prove the facts necessary to establish that the complainant was the victim of a discriminatory practice as defined in the Act. Paragraph 7(b) requires only that a person was differentiated adversely on a prohibited ground in the course of employment. It is a question of mixed fact and law whether the evidence adduced in any given case is sufficient to prove adverse differentiation on a prohibited ground, if believed and not satisfactorily explained by the respondent.
[28] A flexible legal test of a prima facie case is better able than more precise tests to advance the broad purpose underlying the Canadian Human Rights Act, namely the elimination in the federal legislative sphere of discrimination from employment and from the provision of goods, services, facilities and accommodation. Discrimination takes new and subtle forms. Moreover, as counsel for the Commission pointed out, it is now recognized that comparative evidence of discrimination comes in many more forms than the particular one identified in Shakes.
[20] Once a prima facie case is established, the onus then shifts to the Respondent to provide a reasonable explanation demonstrating that the alleged discrimination did not occur as alleged or that the conduct was somehow non-discriminatory: Morin v. Canada (Attorney General), 2005 CHRT 41 at para. 189; Canada (Attorney General) v. Lambie, (1996) 124 F.T.R. 303 at para. 16.
[21] If a reasonable explanation is provided, the Complainant must then demonstrate that it is pretextual: Basi v. Canadian National Railway Company, [1988] C.H.R.D. No. 2 at para. 38474 (Basi).
B. The “Subtle Scent” of Discrimination [22] The fact that discrimination is often subtly practiced within an otherwise appropriate process was dealt with in Basi:
Discrimination on the grounds of race or colour is frequently practised in a very subtle manner. Overt discrimination on these grounds is not present in every discriminatory situation or occurrence. In a case where direct evidence is absent, it becomes necessary for the Board to infer discrimination from the conduct of the individual or individuals whose conduct is at issue. This is not always an easy task to carry out. The conduct alleged to be discriminatory must be carefully analyzed and scrutinized in the context of the situation in which it arises.
[23] In Basi it was determined that “the subtle scent of discrimination” permeated the manner in which the Respondent dealt with the Complainant. The Tribunal concluded that the only inference to draw in those circumstances was that the rationale for not hiring Mr. Basi was pretextual.
Frankly, the subtle scent of discrimination permeates the entire manner in which CNR dealt with the Human Rights Commission in attempting to justify their actions regarding Basi. I am left with the conclusion that the rationale for not hiring Mr. Basi, as described by Mr. Symenuk, was not as innocent, direct nor reasonable, as first proposed. It appeared to me, from the explanations provided to the Commission and from information contained in the files of the CNR that the Respondent was attempting to justify the actions taken by Mr. Symenuk. The effect of the conflicting explanations and inconsistencies is to leave an inference, not only more probable but irresistible, that either the explanations of Mr. Symenuk with respect to the method of selection, or the subsequent explanations with regard to qualifications etc. (or perhaps both), are pretextual.
[24] Basi was considered and followed by the Tribunal in Maillet v. Canada (AG), 2005 CHRT 48 at paragraph 6:
[6] Discrimination is not a practice that one should expect to see displayed overtly. A tribunal should therefore consider all circumstances in determining if there exists what has been described as the subtle scent of discrimination. In cases involving circumstantial evidence, an inference of discrimination may be drawn where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses.
[25] Discrimination may, for example, occur in conjunction with an otherwise appropriate employment staffing practice. In such cases, the formal explanation for a decision not to hire an individual will amount to a pretext that masks the discriminatory nature of the hiring decision. The Tribunal has applied a three-step test to determine whether a prima facie case of discrimination has been made out in the hiring context. As set out in Florence Shakes v. Rex Pak Limited, (1982) 3 C.H.R.R. D/1001 [“Shakes”] and Israeli v. Canadian Human Rights Commission and Public Service Commission, (1983) 4 C.H.R.R. D/1616 [“Israeli”] the complainant must show that:
(1) the complainant was qualified for the particular employment;
(2) the complainant was not hired; and
(3) someone obtained the position who was no better qualified than the complainant, but lacked the attribute on which the complainant based their human rights complaint.
[26] While this test does not automatically apply to every hiring case (see for example Premakumar v. Air Canada, [2002] C.H.R.D. No. 3 at para. 77), I am satisfied that it provides, in this instance, a useful guide to assess whether or not the Complainant has made out a prima facie case of discrimination.
C. Perceived Disability [27] In oral argument Counsel asserted that although Mr. Turner was self-evidently obese, nevertheless, he was able to carry out all the duties of a Customs Inspector. Yet despite this, the Victoria superintendents stereotypically perceived Mr. Turner as lazy and untruthful.
[28] As noted above, the Court questioned whether perceived disability on the basis of weight was properly before the Tribunal. It raises the legal question whether perceived disability on the basis of weight is a prohibited ground of discrimination contemplated by the CHRA.
[29] Disability is a prohibited ground of discrimination under s. 3 of the CHRA. Based on the Supreme Court’s analysis in Boisbriand, cited above, it is clear that discrimination on the basis of disability can occur even in the absence of an actual physical or mental limitation on activities, based solely on societal perceptions of one’s limitations. Applying this reasoning, I find that the ground of disability under s. 3 of the Act encompasses perceived disability as well as actual disability. It is also well established that a person’s weight is a characteristic that can ground a claim of discrimination on the basis of disability: Bouchard v. Canadian Armed Forces, [1990] D.T. 12/90 (CHRT); Hamlyn v. Cominco Ltd., [1989] B.C.C.H.R.D. No. 29. The combined effect of these principles, in my view, is that perceived disability on the basis of weight is a prohibited ground of discrimination contemplated by the CHRA.
[30] I also find that this ground of discrimination is properly before the Tribunal in this case, it was raised in Mr. Turner’s complaint to the Commission and statement of particulars before the Tribunal, and was argued in the Appellant’s written submissions to the Tribunal and discussed repeatedly in oral argument.
D. Intersectionality [31] As noted above, s. 3.1 of the Act specifically provides that “a discriminatory practice includes a practice based on one or more prohibited grounds of discrimination or on the effect of a combination of prohibited grounds”. In my view, this provision reflects a similar concern to that addressed in Radek, cited above, regarding intersectionality: tribunals should be alive to the “interrelationship between a number of intersecting grounds of discrimination” (Radek at para. 464). As the Federal Court of Appeal noted in relation to the present case, the analysis of the primary ground of a complaint must not ignore other grounds raised in the complaint, and “the possibility that compound discrimination may have occurred as a result of the intersection of these grounds” (para. 49).
E. Racism and Stereotyping in Canada [32] Counsel for the Complainant argued that racism and stereotyping are relevant factors in assessing the propriety of the hiring processes at issue in this case. Counsel for the Complainant cited, in this regard, Sinclair v. London (City), 2008 HRTO 48 (Sinclair) and the adjudicator’s acceptance at paragraph 18 that “…anti-Black racism and its subtle manifestations are well-recognized in Canadian law, and expert evidence of the kind presented in this case, while helpful, is not necessary for its effects to be considered by the Tribunal…”
[33] In Sinclair the adjudicator relied on R. v. Spence, 2005 SCC 71 at paragraphs 31-33, and the Supreme Court of Canada’s approval of conclusions of the Ontario Court of Appeal in R. v. Parks, (1993), 84 C.C.C. (3d) 353:
[31] Parks was a case of second degree murder in which the accused was black and the victim was white. As in this appeal, there was no suggestion that the crime was racially motivated or that race would play any part in the defence (p.361). Nevertheless, Doherty J.A. concluded on the first step that “racism, and in particular anti-black racism, is part of our community’s psyche” (p. 369). He continued:
A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes. These elements combine to infect our society as a whole with the evil of racism. Blacks are among the primary victims of that evil. [page 369]
[34] The adjudicator in Sinclair explained the Tribunal’s discretion in determining the influence of racialization and stereotypes in the particular situation under inquiry: “… The evaluation of the dynamics of what occurred and witnesses’ credibility are issues to be determined by the Tribunal, through an analysis of evidence that has been admitted in accordance with the Tribunal’s rules. Dr. Henry’s opinion on whether stereotypes played a part in the actions of the City witnesses in this case or how general patterns may have played themselves out here are not within her expertise or appropriately taken into account by the Tribunal …” (paragraph 22)
IV. The Evidence A. Complainant’s Opening Statement [35] At the outset of the Tribunal inquiry, Mr. Yazbeck, Counsel for the Complainant, stated that Mr. Turner had been employed by the CCRA as a seasonal term employee in Victoria, B.C., from 1998 until 2003. Counsel described the hiring regime during that period as a competitive process which established eligibility lists of all qualified persons, ranked in order of merit; that in 1999 the process was replaced by the current process, which creates prequalified pools of candidates from which CBSA (formerly part of CCRA) managers may exercise discretion in determining which candidates are to be employed.
[36] To assist the Tribunal, Counsel offered an overview of the Complainant’s case:
… But the bottom line for my present purposes is that Mr. Turner has been working in this position. He knows the job, he’s qualified. And you’ll hear evidence as well of his performance appraisals throughout this period, which demonstrate that he performed well in his position. He was a dedicated employee, well liked, hard worker, very resourceful, and so on.
Transcript: Volume One, section one, page 16, lines 22-25; page 17, lines 1-4.
… This is not a case, unfortunately for me, where I can pull out the so-called smoking gun and say, here’s the case for discrimination. As you know, we’re looking for the subtle scent here.
And what happened is that you have an employee that’s doing well, performing well. But when it comes time to get into the prequalified pools in … ‘03 and then in ’04, which could result in him having indeterminate employment; secure, long-term employment; something happens. All of a sudden, like that, he’s determined to be unqualified.
And with respect to the Tribunal, I will be urging you to ask the question, ask this question: why? Why did this happen? Why did an employee, who was performing well, had no performance deficiencies, all of a sudden become unqualified?
The Complainant, sir, is Levan Turner. He is an older black male, and it’s his position that those factors, as well as his size, were the reasons why he was denied this employment.
Transcript: Volume One, section one, page 17, lines 6-25; page 18, lines 1- 3.
[37] Complainant Counsel drew the Tribunal’s attention to Exhibit C-2 (the Complainant’s Book of Documents, Volume 2, Tab 33) which has particular relevance to the Victoria process:
…This is an e-mail exchange between Mr. Klassen, who was responsible for assessing Mr. Turner’s capabilities, his performance… It’s an e-mail to himself, so it’s like a note to file.
And then what he did was, he copied the email to other persons you’ll see listed there. And many of these persons are senior managers, and their names will come up in this hearing as persons involved in the selection processes that we’re dealing with.
What’s important, Mr. Sinclair, is to look at some of the things that this person Klassen is saying about Mr. Turner….
If you look at the second paragraph … It started talking about how he is perceived. How he sometimes shies away from the harder tasks, or knows the right procedure to take, but asks the Superintendent to advise.
You’ll see later that Mr. Klassen’s own reporting of this discussion was that Mr. Turner was shocked to hear this but he wasn’t defensive.
Next paragraph… “I went on to explain that this perception has been around for a couple of summers and that it was something he would need to work on next year.” Again a perception. And then at the end of that, the next sentence: “I reminded him that this is not how he is perceived all the time.”
Transcript: Volume One, section one, page 19, lines 18-25; page 20, line 1
…What is this perception? What is this image? And at the end of the day, what I think you will find, sir, is that it’s the perception of an older black male who is large, and you’ll see from the complaint form as well that Mr. Turner’s size is identified as a, as a basis here as well.
So the credibility of the staffing processes is very much in doubt. And if you have a process like that, and you’ll hear how it was flawed – but if you have a process that can so easily fail to respect some of the basic rules governing staffing in the federal public service, it’s not surprising that the process would allow somebody to be disqualified because he’s an older, black, overweight employee. This is not a rigorous system that the Agency employs.
… And as you know, based upon the, the authorities of this Tribunal and the Federal Court, in those circumstances there will be a case made, a prima facie case made for discrimination that had not been rebutted.
The Chairperson: What is the prima facie case that you’re arguing?
Mr. Yazbek: The prima facie case, sir, is that here is an employee who clearly applied for the position, who was qualified for the position, who was denied the position or positions, but denied the positions for reasons which are pretexts. And the prima facie, the prima facie case is that there is no other explanation but for the employee’s race or age or perceived disability, which is his weight.
Transcript: Volume One, section one, page 29, lines 1-15
B. Respondent Counsel’s Reply [38] After the Complainant’s opening statement, Respondent Counsel was content to make his reply to Complainant’s opening statement before Superintendent Ronald Paul Tarnawski began his testimony. At that time, the Chairperson asked Respondent Counsel if Mr. Tarnawski’s testimony would be limited to the eligibility restriction in Vancouver Competition 1002.
Mr. Stark: Yes … there is some essential background that I believe will be of help in terms of explaining the context and how these competitions are put together. He was also assigned to the recruitment unit that came into existence round about the same time – well, before these competitions. And a lot of the standardization and competencies that we have been dealing with that were throughout these competencies, he can explain that and what’s behind it.
The Chairperson: Why is that relevant? At this point, given all the evidence we have heard, is that going to be useful evidence? I am sure you have already thought about your argument at this point. Is it useful evidence?
Mr. Stark: Well, I would say this: What’s at issue in this matter is an interesting case in the sense that these two selection processes, they are – essentially they are similar to any other federal board in terms of they are charged with a task of selecting; and seeing whether they are qualified based against the competency.
…
The Chairperson: …as I understand it, the issue is going to be circumstantial because nobody said Mr. Turner didn’t qualify for the Victoria process because he is black, he has a disability, or because of his age. So there has to be some sort of inference drawn from the evidence: right?
Mr. Stark: Yes.
The Chairperson: Now we have the Vancouver process where he did qualify except they mistakenly later learn that he shouldn’t even have been in the process because he wasn’t eligible, as they interpreted the restrictions.
Mr. Stark: I think there has to be some care taken there though because the Vancouver process – again I am paraphrasing what the witness will provide to the court – but the Vancouver process, unlike the Victoria one, was a two-step process. The first interview only dealt with EIC, effective interactive communication. And as shown on that lead sheet, Mr. Turner achieved a bare pass of 70 percent.
During the course of that interview you probably recall Mr. Turner’s evidence, he was asked about the eligibility restriction. Based upon the discussion that took place in that first interview checks were made and it was discovered that he had in fact interviewed unsuccessfully in other processers since January 1st, 2002.
The Chairperson: So what’s the issue in your view? … The issue is he didn’t get through the Vancouver process?
Mr. Stark: Right.
The Chairperson: And the reason he didn’t …from the evidence I have heard, I haven’t heard from Mr. Tarnawski, is because he wasn’t eligible because of the restriction…
Mr. Stark: Right.
The Chairperson: And to me the issue is whether that restriction – which on its face didn’t seem to exclude him and he didn’t think he was excluded – was applied in a different fashion. And that’s the issue that maybe was improperly applied or interpreted improperly.
But that’s nothing that this tribunal can deal with. It has to be demonstrated that it was applied to Mr. Turner as a subterfuge so that he couldn’t get the position because he is black or has a disability or is too old.
Mr. Stark: There has to be a pretext.
The Chairperson: Yes.
Mr. Stark: Proven to be a pretext.
Transcript: January 22, 2009; page 111, lines 1-25; page 112, lines 2-3, 17-25; page 113, lines 1-25; page 114, lines 1-12.
C. Witne